Introduction:

The Bombay High Court is presently seized of a significant constitutional challenge in Kunal Kamra v. Union of India along with a connected matter, Haresh Jagtiani v. Union of India, wherein the legality of the SAHYOG Portal and the 2025 amendment to Rule 3(1)(d) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 has been called into question. The petitions raise serious concerns about the growing scope of executive control over online content and the potential implications for freedom of speech and expression in India.

The controversy stems from the introduction of the SAHYOG Portal pursuant to the 2025 amendment, which allegedly enables law enforcement authorities, including local police officers, to issue directions for takedown of online content they deem “objectionable.” The petitioners argue that this framework has led to arbitrary censorship, where even low-ranking officials exercise wide discretion without adequate safeguards or oversight.

During the hearing, senior advocate N. Seervai, appearing for the petitioner, highlighted instances where content was sought to be removed merely on subjective grounds, including a post relating to a Chief Minister’s visit to Davos. The matter has thus brought into sharp focus the tension between regulatory mechanisms for online platforms and the constitutional guarantee of free speech under Article 19(1)(a).

The Division Bench comprising Chief Justice Shree Chandrashekhar and Justice Gautam Ankhad has taken note of the submissions and granted time to the petitioner to amend the plea in light of subsequent amendments to the Rules, while also directing the Union Government to file its response. The case is poised to have far-reaching implications for digital governance and civil liberties in India.

Arguments by the Petitioners:

The petitioners, led by Kunal Kamra and supported by Haresh Jagtiani in the connected matter, have mounted a comprehensive challenge to both the SAHYOG Portal and the 2025 amendment to Rule 3(1)(d) of the IT Rules.

At the heart of their argument lies the assertion that the amended framework enables arbitrary and unchecked censorship of online content. It was contended that the SAHYOG Portal effectively decentralizes the power to order content takedowns, allowing even ordinary police officers to issue such directions based on their subjective assessment of what constitutes “objectionable” material.

Senior advocate N. Seervai argued that this creates a dangerous situation where the determination of legality or acceptability of content is left to individual discretion, without any uniform standards or procedural safeguards. He emphasized that there are “thousands of instances” where such powers have been exercised, often leading to unjustified suppression of lawful expression.

A specific example cited during the hearing involved a social media post regarding a Chief Minister’s visit to Davos, which was flagged as objectionable by a police officer. The petitioner questioned how such content, which appears to be innocuous and informational, could be deemed objectionable, thereby illustrating the arbitrary nature of the enforcement mechanism.

The petitioners further argued that the impugned provisions violate Article 19(1)(a) of the Constitution, which guarantees the right to freedom of speech and expression. They contended that any restriction on this right must satisfy the requirements of reasonableness under Article 19(2), including being narrowly tailored and supported by clear legal standards.

It was submitted that the amendment to Rule 3(1)(d) fails this test, as it lacks clarity and precision, thereby granting excessive discretion to authorities. The absence of procedural safeguards, such as prior notice, opportunity to be heard, and independent review, was also highlighted as a major constitutional infirmity.

Additionally, the petitioners argued that the framework undermines the principle of due process by enabling executive action without judicial oversight. They contended that decisions affecting fundamental rights, such as the removal of online content, must be subject to scrutiny by an independent authority, rather than being left to administrative fiat.

The petitioners also pointed out that while the present petition was pending, the Central Government introduced further amendments to the Rules, which could potentially exacerbate the concerns raised. They sought permission to amend the petition to incorporate challenges to these new provisions.

Another significant aspect of their argument was the chilling effect on free speech. The petitioners contended that the threat of arbitrary takedown orders discourages individuals from expressing their views online, thereby stifling public discourse and democratic engagement.

Arguments by the Respondents:

Although the Union of India had not filed its detailed reply at the time of the hearing, certain preliminary positions and likely arguments can be discerned from the context of the proceedings.

The respondents are expected to defend the SAHYOG Portal and the amendments to the IT Rules as necessary measures to regulate online content and maintain public order. It is likely to be argued that the rapid proliferation of digital platforms necessitates effective mechanisms to address harmful, misleading, or unlawful content.

The government may contend that the impugned provisions are aimed at ensuring compliance by intermediaries with legal requirements and facilitating timely action against content that violates the law. The involvement of law enforcement authorities, including police officers, could be justified on the ground that they are best positioned to assess and respond to threats to public order and security.

It may also be argued that the term “objectionable” must be understood in the context of existing legal standards, including provisions of the Indian Penal Code and other statutes. The respondents could assert that the powers conferred under the Rules are not arbitrary but are guided by established legal principles.

Furthermore, the government is likely to emphasize that the regulatory framework includes safeguards and that any misuse of power can be challenged through appropriate legal remedies. It may also argue that the petitioners have relied on anecdotal instances rather than demonstrating systemic abuse.

Another possible line of defence is that the Rules operate within the broader constitutional framework and are subject to judicial review. The respondents may contend that the mere possibility of misuse does not render a provision unconstitutional.

However, at the current stage, the absence of a formal reply from the Union Government means that these arguments are yet to be fully articulated before the Court.

Court’s Observations and Directions:

The Bombay High Court, while not delivering a final judgment on the merits of the case, made significant observations and issued directions that reflect the seriousness of the issues involved.

The Court took note of the petitioner’s submissions regarding the arbitrary exercise of powers under the SAHYOG Portal and the amended IT Rules. It acknowledged the need to examine the constitutional validity of these provisions, particularly in light of their potential impact on fundamental rights.

Importantly, the Court was informed that the Central Government had introduced further amendments to the Rules while the petition was pending. Recognizing that these changes could have a bearing on the issues raised, the Bench granted the petitioner one week’s time to amend the petition accordingly.

The Court also expressed concern over the delay in filing a response by the Union Government, noting that the petition had been pending for several months. It granted the government two weeks’ time to file its reply, thereby ensuring that the matter could proceed to a substantive hearing.

While the Court did not delve into detailed legal analysis at this stage, its willingness to entertain the challenge and seek comprehensive submissions from both sides indicates that it views the matter as one of considerable constitutional importance.

The directions issued by the Court aim to facilitate a thorough examination of the issues, ensuring that all relevant aspects, including subsequent amendments, are taken into account.